Quan v Bray & Ors

A post-nuptial settlement requires an existing disposition providing continuing financial provision for one or both spouses in their capacity as spouses. A fully discretionary trust does not become such a settlement merely because its terms could be amended to add the spouses as beneficiaries. A non-nuptial trust may later become nuptial if benefits are actually paid to the spouses, evidencing an existing disposition. A vague intention to provide an unspecified future benefit is insufficient. Assets held solely for a charitable project are not the husband’s resource for financial-relief purposes. The court also declined to vary the trust because the relevant Mauritian statutory restriction would prevent enforcement of an English variation order.

The petitioner sought financial relief following the breakdown of her marriage to the first respondent. The central preliminary issue concerned the status and assets of the Chinese Tigers South Africa Trust, a Mauritian trust forming part of a charitable conservation project. The petitioner contended that the trust had been established, or had later become, a post-nuptial settlement benefiting the parties and that its assets were available as a resource. The respondents disputed that case and maintained that the trust had the sole purpose of advancing the Chinese Tiger Project. The court determined whether the trust was variable under section 24 of the Matrimonial Causes Act 1973, and whether its assets could be treated as a resource under section 25.

1. The trust was not a post-nuptial settlement. The court adopted the broad approach to settlements described in Ben Hashem v Al Shayif, drawing on Brooks v Brooks and the earlier authorities. The essential feature was an existing disposition providing present or future financial benefit to one or both spouses in their capacity as husband or wife. The court had to examine the true nature of the arrangement, construing the formal trust document and considering the relevant evidence.
2. The mere fact that a discretionary trust could theoretically be amended to add the parties as beneficiaries did not constitute an existing disposition. A non-nuptial trust could later become nuptial where a regular flow of benefits to the spouses evidenced an existing intention to benefit them. No such benefits had been established here.
3. A vague and unspecified intention to benefit the spouses at some future time, depending on circumstances and possibly requiring amendment of the trust deed, was insufficient. It did not amount to an existing disposition.
4. The court found that the trust had been established, and continued, solely to advance the Chinese Tiger Project through Save China’s Tigers. The parties had not received benefits from the trust and there was no existing intention to provide them with personal benefits. The trust therefore could not be varied under section 24(1)(c) of the Matrimonial Causes Act 1973.
5. The trust’s assets were not a resource of the husband under section 25. Although he could theoretically seek changes to the trust, the evidence did not show that the trustees would be likely to follow his wishes. It would therefore be wrong to make a lump-sum order against him on the expectation that the charitable trust would provide the funds.
6. In any event, the court considered that section 11(5) of the Mauritian Trusts Act 2001 would prevent a Mauritian court from enforcing an English order varying the trust, particularly against the trust’s opposition. The proposed variation would not be ordered.
7. The wife’s post-judgment Barrell application was refused. The jurisdiction permits reconsideration where a particular fact or item of evidence has obviously been omitted, overlooked or changed. It does not permit wholesale re-argument or a request to rewrite the judgment.

First-instance determination. No appellate history was stated in the judgment.